Citation NR: 9602309
Decision Date: 01/31/96 Archive Date: 02/15/96
DOCKET NO. 95-32 067 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently rated 50 percent disabling.
REPRESENTATION
Appellant represented by: R. Edward Bates, Attorney
ATTORNEY FOR THE BOARD
Richard V. Chamberlain, Counsel
INTRODUCTION
The veteran served on active duty from August 1968 to August
1970.
This appeal arises from September 1993 and later rating
decisions by the Department of Veterans Affairs (VA) Regional
Office (RO) in Boston, Massachusetts, that denied a rating in
excess of 50 percent for the veteran’s PTSD. He has appealed
to the Board of Veterans’ Appeals (Board) for a higher
rating, including a total rating, for this disorder.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has symptoms of PTSD that
warrant a higher rating for this psychiatric disorder.
Additionally, he maintains that the symptoms of his PTSD (his
only service-connected disability) prevent him from obtaining
or maintaining gainful employment and he requests a total
rating for this disorder.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims files
and VA vocational rehabilitation file (Chapter 31 of 38
U.S.C.A.). Based on its review of the relevant evidence, and
for the following reasons and bases, it is the decision of
the Board that the evidence favors granting a total schedular
rating for the veteran’s PTSD.
FINDINGS OF FACT
1. The symptoms of the veteran’s PTSD produce severe social
and industrial impairment.
2. His PTSD symptoms render him demonstrably unable to
obtain or retain substantially gainful employment.
CONCLUSION OF LAW
The schedular criteria for a 100 percent evaluation for PTSD
are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7,
4.16(c), 4.132, Code 9411 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A. Factual Background
The veteran served on active duty from August 1968 to August
1970.
In June 1985, the veteran underwent VA psychiatric
examination. The diagnosis was PTSD, chronic, delayed,
severe.
A July 1985 RO rating decision granted service connection for
PTSD. A 10 percent rating was assigned for this disorder
from April 1983. A February 1993 RO rating decision
increased the rating for PTSD from 10 to 30 percent from
November 1992.
In April 1993, the veteran underwent VA psychiatric
evaluation. It was noted that he had a history of PTSD with
symptoms of marked sleep disturbance with nightmares, anxiety
attacks while in crowds, generalized suspiciousness,
alienation from family members, and mood lability. It was
related that the PTSD had been complicated in 1992 by major
depression associated with the death of the veteran’s father,
and that the veteran had been unable to engage in competitive
employment since then. It was noted that he would not be
able to return to work for at least 6 to 12 months.
The veteran underwent VA psychiatric examination in June
1993. He was found to be severely limited interpersonally
and industrially. His potential for long-term employment was
considered poor, and it was noted that he would remain
impaired in his interpersonal relationships despite maximal
supports. The diagnosis was severe PTSD.
A September 1993 RO rating decision increased the evaluation
for the veteran’s PTSD from 30 to 50 percent from May 1993.
VA medical reports shows that the veteran was treated on an
outpatient basis for PTSD symptoms in 1993 and 1994. These
reports show that he received medication for his PTSD and
that symptoms of this disorder were interfering with his
ability to function.
On an application for increased compensation based on
unemployability, dated in April 1994, the veteran reported
that he had last worked in June 1992. He gave a history of
work in maintenance and as a mechanic. He reported 2 years
of college and that in 1993 he had attended college under a
VA vocational rehabilitation program but had failed all
courses because of his inability to concentrate or remember,
and “too many people”.
A VA report reveals that the veteran was hospitalized for
treatment of PTSD symptoms from July to August 1994. At the
time of discharge from this hospitalization he was considered
unemployable and his global assessment of functioning score
under the American Psychiatric Association’s Diagnostic and
Statistical Manual for Mental Disorders (3d ed. rev., 1987)
was 42 which indicates serious impairment in social,
occupational or school functioning as indicated in excerpts
of medical literature from the medical source cited in this
paragraph submitted by the veteran in 1995.
A January 1995 RO rating decision assigned a temporary total
rating for the veteran’s PTSD from July to September 1994
based on his VA hospitalization for a period in excess of 21
days for treatment of this disorder (38 C.F.R. § 4.29). The
50 percent rating for PTSD was resumed from September 1994.
Reports in the veteran’s VA vocational rehabilitation file
reveal that he was found feasible for training in 1993 and in
1994 found infeasible for the training. In January 1995, a
VA Vocational Rehabilitation and Counseling Officer notified
the RO Adjudication Officer of this decision.
Various documents were submitted by the veteran in February
1995, including copies of VA records, the above-noted
excerpts from medical literature concerning PTSD, Social
Security Administration (SSA) records, and a report of a
psychological evaluation of the veteran in February 1995.
The SSA documents indicate that the veteran was awarded
disability benefits from the SSA due to functional
limitations caused by PTSD symptoms. The report of his
psychological evaluation in February 1995 notes that he was
considered unemployable due to symptoms of PTSD.
A VA hospital summary shows that the veteran was treated for
symptoms of PTSD from February to March 1995. At the time of
hospital discharge he was considered unemployable. The Axis
I diagnoses were PTSD and dysthymia secondary to PTSD. His
global assessment of functioning score was 41 which indicates
serious impairment in social, occupational or school
functioning.
A March 1995 RO rating decision assigned a temporary total
rating for PTSD from February to April 1995 based on the
veteran’s VA hospitalization for a period in excess of 21
days for treatment of this disorder. The 50 percent rating
was resumed from April 1995.
B. Legal Analysis
The record shows that the veteran’s claim for an increased
rating for PTSD is well grounded, meaning it is plausible.
VA has a duty to assist him in developing facts pertinent to
this claim. 38 U.S.C.A. § 5107(a). The Board is satisfied
that all relevant facts have been properly developed and that
no further assistance to him is required in order to comply
with VA’s duty to assist.
In order to establish entitlement to a higher rating for
PTSD, the evidence must show manifestations of this disorder
which meet or more nearly approximate the criteria for a
higher rating under the appropriate diagnostic code in the
Schedule for Rating Disabilities. 38 U.S.C.A. § 1155;
38 C.F.R. § 4.7.
A 50 percent rating is warranted for PTSD where the ability
to establish or maintain effective or favorable relationships
with people is considerably impaired and where the
reliability, flexibility, and efficiency levels are so
reduced by reason of psychoneurotic symptoms as to result in
considerable industrial impairment. A 70 percent evaluation
is warranted where the ability to establish or maintain
effective or favorable relationships with people is severely
impaired and the psychoneurotic symptoms are of such severity
and persistence that there is severe impairment in the
ability to obtain or retain employment. A 100 percent
evaluation requires that attitudes of all contact except the
most intimate be so adversely affected as to result in
virtual isolation in the community and there be repudiation
of reality with disturbed thought or behavioral processes
(such as fantasy, confusion, panic, and explosions of
aggressive energy) associated with almost all daily activity
resulting in profound retreat from mature behavior. The
individual must be demonstrably unable to retain or maintain
employment. 38 C.F.R. § 4.132, Code 9411.
The provisions for establishing entitlement to a total
disability rating based on individual unemployability found
in 38 C.F.R. § 4.16(a) are not for application in cases in
which the only compensable service-connected disability is a
mental disorder assigned a 70 percent evaluation, and such
mental disorder precludes a veteran from securing or
following a substantially gainful occupation. In such cases,
the mental disorder shall be assigned a 100 percent schedular
rating under the appropriate diagnostic code. 38 C.F.R.
§ 4.16(c).
A review of the evidence shows that the veteran had symptoms
of PTSD at the time of his VA psychiatric examination in June
1993 that were considered severely disabling. VA medical
reports of his treatment in 1993, 1994, and 1995 do not show
any improvement in these symptoms, and in 1994 and 1995 he
had to be hospitalized for treatment of the symptoms.
Reports of his VA hospitalizations in 1994 and 1995 note that
he was considered unemployable at the time of those hospital
discharges. The record also reveals that he unsuccessfully
participated in a VA vocational rehabilitation program in
1993, that in 1994 he was considered infeasible for such
training, and that he was awarded disability benefits from
the SSA due to functional limitations caused by PTSD. The
overall evidence reveals symptoms of PTSD that produce severe
social and industrial impairment. Hence, the criteria for a
70 percent schedular rating under code 9411 are met.
After careful consideration of all the evidence, the Board
finds that the symptoms of the veteran’s PTSD produce no more
than severe social and industrial impairment. Under the
circumstances, the Board must conclude that the preponderance
of the evidence is against the claim for a total rating for
PTSD under the provisions of code 9411 alone.
The evidence, however, reveals that the veteran has been
unemployed for several years due to symptoms of PTSD. Since
his only service connected disability is PTSD and he is
unemployable due to symptoms of this disorder, the matter of
his entitlement to total schedular rating for PTSD is not
only whether he meets the requirements for such a rating
under code 9411, but also whether he is entitled to such a
rating by meeting the criteria of 38 C.F.R. § 4.16(c). James
v. Derwinski, 3 Vet.App. 41 (1992).
Inasmuch as the Board has found that the preponderance of the
evidence supports a 70 percent rating for the veteran’s PTSD
and he has been shown to be unemployable due to symptoms of
this disorder, a total schedular rating is warranted for the
PTSD.
ORDER
A total schedular rating for PTSD is granted, subject to
regulations applicable to the payment of monetary benefits.
J. E. DAY
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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